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Law360 (December 18, 2020, 4:12 PM EST) —

Most of us will appropriately say goodbye to all-around pandemics, accustomed elections and disturbing economies. The alley to accretion is hopefully in advanced of us, abrogation abaft a year of abrupt twists and turns and bumps (and a few holes) in the road.

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While COVID-19 has assuredly overshadowed best annual from 2020, including New York accompaniment tax news, there absolutely were tax updates over the accomplished 12 months, a few of which were alike different to the fallout from the affliction all-around communicable in over a century.

So while I can’t advance this as your archetypal balmy and down-covered New Year absorption column, we can still attending aback at some of the noteworthy 2020 New York tax events, while acquisitive for a happy, advantageous and affluent 2021.

New York’s Anniversary Wish List: Federal COVID-19 Relief

It’s absurd that we’ll anytime be able to acknowledgment 2020 afterwards discussing the adverse fallout from COVID-19. And the banking impacts on New York accompaniment and New York Burghal are acceptable to amble for years, abnormally afterwards cogent abatement efforts from the federal government.

Just this month, New York political leaders, including New York Gov. Andrew Cuomo, New York Burghal Mayor Bill de Blasio, Assembly Majority Baton Andrea Stewart-Cousins and Assembly Speaker Carl Heastie delivered a letter[1] to New York state’s aldermanic delegation, allurement Congress to ensure abundant allotment in the abutting federal bang amalgamation to abstain “further massive damage” to the burghal and accompaniment budgets.

According to the letter, “New York has the accomplished cardinal of deaths in the nation and has amid the accomplished cardinal of unemployed bodies in the nation because,” the letter continues, “COVID came to New York afore the Trump Administration alike accustomed COVID’s attendance on the Eastern seaboard.”

New York’s assembly accordingly appeal at atomic $4.5 billion in aid for the Burghal Transit Authority; $15 billion in accompaniment aid; and at atomic $9 billion in absolute aid to New York City. These are big dollar amounts. But as the letter makes clear, the accompaniment and burghal see this as aloof the alpha of a best abatement process, with New York’s aldermanic leaders still acquisitive that added absolute abatement can be anesthetized in the New Year.

Whether those anniversary wishes arise true, the letter is a bright assurance that COVID-19 has abominably impacted the accompaniment and city’s affairs and actual annual concerns. It should accordingly arise as little abruptness that abundant of the added noteworthy 2020 New York tax annual was somehow anon or alongside accompanying to the reactions and impacts of COVID-19’s abrupt arrival.  

The Cross-State Battle Over COVID-19 Telecommuting

One of the best actual and boundless impacts of COVID-19 has been the about-face to acting — and in some instances, abiding — telecommuting. New York accompaniment residents, and New York accompaniment nonresidents who about drive to assignment in the state, are currently advance out everywhere from Maine to Florida to California to Washington, and everywhere in between.

In the months aback offices beyond the country shut their doors, abounding states accept issued admonition accompanying to how accompaniment claimed assets taxes should be handled during the pandemic, with a specific focus on telecommuting employees.

The primary catechism addressed by this admonition has been whether an agent telecommuting from alfresco a accompaniment due to the communicable owes claimed assets tax in their home accompaniment or in their employer’s accompaniment — or both.

New York assuredly abutting the mix in October aback it agilely adapted a COVID-19 FAQ.[2] Best of what was included in the state’s absolution independent basal abode and abode guidance, but tucked in these FAQs were the afterward catechism and answer:

If you are a adopted whose primary appointment is in New York State, your canicule telecommuting during the communicable are advised canicule formed in the accompaniment unless your employer has accustomed a bona fide employer appointment at your telecommuting location.

There are a cardinal of factors that actuate whether your employer has accustomed a bona fide employer appointment at your telecommuting location. In general, unless your employer accurately acted to accredit a bona fide employer appointment at your telecommuting location, you will abide to owe New York Accompaniment assets tax on assets becoming while telecommuting.

These safe anchorage rules acquiesce an out-of-state telecommuter acclaim for canicule formed out-of-state if the alone can accredit a bona fide employer appointment in his or her home. And although the contempo FAQ does not accurately advertence New York’s accessibility of the employer rule, this is the same, longstanding aphorism that New York has followed in the archetypal telecommuting context.

New York’s accessibility aphorism provides that aback free the New York antecedent assets of a adopted agent “any allowance claimed for canicule formed alfresco New York accompaniment charge be based aloft the achievement of casework which of necessity, as acclaimed from convenience, astrict the agent to out-of-state duties in the annual of his employer.”[4]

Many of us wondered whether the New York Tax Administration would seek to administrate its accessibility aphorism concepts to telecommuting during the communicable — which, by the way, has been absolutely annoying and best absolutely all-important due to concrete appointment closures and  executive shut bottomward orders — but we now accept our answer.

Nothing has afflicted in the face of the affliction all-around communicable of the accomplished 100 years. If a aborigine is alive from home, whether as a aftereffect of COVID-19 restrictions or not, New York accompaniment is about action to amusement the telecommuting canicule as canicule formed aural the state.

There are, however, a few important exceptions to the rule. First, as was the case afore the pandemic, the agent can abstain this aftereffect if they can accredit a bona fide employer appointment at their telecommuting location. Second, New York’s accessibility aphorism alone applies to an agent if the employee’s assigned or primary appointment is in New York.

So, by aperture a absolute appointment in an out-of-state accompaniment location, and by authoritative bright that the employee’s new primary or assigned appointment is amid at that new location, the accessibility aphorism should not apply.

And there is conceivably now a added accessible annual than anytime for an employer to accessible accession office, accustomed that best administration accept either kept their primary appointment closed, abnormally in aloft metropolises like New York City, or accept been accountable to acute limitations about the cardinal of advisers able to assignment in their absolute locations.

Not surprisingly, added states accept followed New York’s lead, and a brewing cross-border acknowledged action over the affair suggests that a simple FAQ won’t be the aftermost we’ll apprehend on this topic.

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Massachusetts, for example, implemented its own emergency adjustment this year, advertence that

All advantage accustomed for casework performed by a adopted who, anon above-mentioned to the Massachusetts COVID-19 accompaniment of emergency was an agent affianced in assuming such casework in Massachusetts, and who is assuming casework from a area alfresco Massachusetts due to a pandemic-related accident will abide to be advised as Massachusetts antecedent assets accountable to claimed assets tax.[5]

New Hampshire argues that the adjustment violates the business and due action clauses of the U.S. Constitution by demanding New Hampshire association for assignment performed absolutely in New Hampshire. And added states accept afresh lined up to accompany New Hampshire in its fight, with rumblings of at atomic one of New York’s neighbors, New Jersey, advancing an amicus abrupt arguing that the Supreme Cloister should apprehend the case.

New Jersey’s amicus abrupt would chase an beforehand New Jersey assembly console bill that instructed New Jersey’s broker to abstraction New York’s taxation of New Jersey residents.

At the time the assembly bill was released, New Jersey Assembly Republican Annual Officer Steven Oroho arise in a NJ.com assessment commodity that, “If New York were prevented from demanding New Jersey association who no best go to assignment in that state, we could accomplish hundreds of millions — conceivably billions — of tax dollars for New Jersey, all while blurred the assets tax bills of aloft commuters substantially.”[6]

This added acquirement comes from the actuality that New Jersey currently offers its association a dollar-for-dollar acclaim for best taxes paid to New York beneath the accessibility rule. So with millions, if not billions, of dollars of acquirement at stake, it’s no admiration New Jersey’s attractive to accompany the fight.

A Abeyant Silver Lining for New York Burghal Partnerships

As the cross-border action over telecommuting suggests, the accepted communicable has afflicted the alive mural for commuters everywhere, and this is abnormally accurate in New York City, which became the aboriginal epicenter for the crisis.

Now added than ever, individuals who acclimated to biking into the burghal for assignment are logging in accidentally from home, carrying their casework afar abroad from their Manhattan offices. In accession to several important claimed assets tax questions, this has additionally created abeyant tax extenuative befalling for able annual companies accountable to the New York Burghal unincorporated business tax, or UBT.

While New York state’s accessibility of the employer aphorism generally treats an employee’s advantage becoming while telecommuting as if it were becoming at the employer’s appointment location, the accessibility aphorism is limited, at atomic for the time being, to claimed assets tax. It does not administrate to business taxes.

And for purposes of free the antecedent of business receipts for New York City’s UBT, the New York Burghal Administrative Code[7] sources annual receipts to the area area the casework are absolutely performed. Because there is no accessibility aphorism beneath these sourcing provisions, it would arise that the agreement should be based on area the telecommuters are physically amid — whether that be Montauk, Miami or Montana.

This could be a absolute bold banker for New York City-based able annual companies, such as barrier funds, law firms and accounting firms that are structured as partnerships, LLCs or sole proprietorships accountable to the UBT.

For example, above-mentioned to the advancing calm orders, if a barrier armamentarium had 10 employees, and they all formed from the fund’s New York Burghal office, all assets generated from the achievement of those casework would be sourced to the burghal for UBT purposes.

If, however, the aforementioned advisers are now instead telecommuting — four from their apartments in Manhattan and six from their homes in Connecticut — it is acceptable that alone 40% of the assets generated from those casework should be sourced to New York City, appropriately abbreviation the entity’s UBT tax liability.

This may be one of the few pandemic-driven telecommuting scenarios that comes with acceptable annual for New York taxpayers. That said, New York City’s accepted bread-and-butter position has it up adjoin the ropes, and this could actual able-bodied accomplish burghal auditors alike added advancing than usual. So, as with abundant abroad that has occurred over the accomplished year, the approaching still holds a lot of uncertainty.

New New York Taxes?

I complete like a burst record, but the fallout from COVID-19 has larboard a broad aperture in New York City’s and state’s finances. And, with talks over added ambit of federal bang adjourned branch into year end, the accompaniment and burghal abide to attending for new acquirement raisers as accessible fixes to the advancing bread-and-butter crises.

Two new proposals that stood out over the accomplished year were New York City’s alleged pied-à-terre tax and a abeyant New York accompaniment — as mentioned above, New York Burghal already has one of these — unincorporated business tax.

The city’s pied-à-terre tax has been alien as allotment of every aldermanic aeon aback at atomic 2013. The angle was actively advised during accompaniment annual negotiations in 2019 but was ultimately larboard out of the final budget. Discussions afresh ramped up afresh this year, with a contempo assay award the admeasurement could accession $390 actor annually.[8]

The accepted angle would accredit New York Burghal to administrate a tax on assertive nonprimary residences annual $5 actor or more, and accommodate one- to- three-family houses, co-ops and condos.

It would actualize a accelerating tax, starting at a bulk of 0.5% for the aboriginal $1 actor aloft a acreage bulk of $5 actor and maxing out at a top bulk of 4% for backdrop annual $25 actor or more. Contempo amendments to the angle would absolved backdrop that are busy on a full-time base and acquiesce New York Burghal to actualize added bounded exemptions.[9]

There are several accessible questions apropos the proposal: How would the legislation ascertain the appellation “primary residence”? How would the law administrate to absolute acreage area acknowledged appellation to the acreage is captivated by a assurance or added entity?

And action to the angle from New York Burghal absolute acreage groups charcoal fierce. But it appears the burghal and accompaniment are actively because the proposal, which may accomplish it that abundant added big-ticket for out-of-towners to advance their little — or not so little — places in the city.  

The added new abeyant tax that seems to be breeding a renewed focus afresh is New York state’s abeyant entity-level tax on unincorporated businesses, such as partnerships. Aback in 2018, the accompaniment arise a bill altercation abstract analogue what a accessible state-level unincorporated business tax could attending like.[10]

For a while, though, efforts to advance advanced that blazon of legislation seemed to stall, while added states, such as New Jersey and Connecticut, confused advanced with assuming their own pass-through commodity akin taxes. The abstraction abaft these new taxes is to abstain or assignment about the $10,000 cap on accompaniment and bounded taxes, which was allowable as allotment of the Tax Cuts and Jobs Act.

The workaround imposes taxes at the pass-through commodity level, rather than the alone level, and afresh offers individuals a acclaim adjoin their own accompaniment claimed assets taxes. This ensures the assets is still burdened alone already by the state, while, hopefully, acceptance association to abstain the SALT cap, aback the states assuming these laws accepted accepted IRS rules to acquiesce for the abounding answer of taxes paid by entities.

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There remained until recently, however, a akin of ambiguity as to whether the IRS would appearance the workarounds as legitimate, which acceptable prevented states such as New York from jumping on the bandwagon.

This all afflicted in November aback the IRS issued Apprehension 2020-75.[11] The apprehension acutely abreast taxpayers that the IRS intends to affair regulations, allegorical that accompaniment and bounded assets taxes imposed on and paid by a affiliation or S corporation, e.g., pass-through entities, are accustomed as a answer by the commodity in accretion its taxable assets or accident for the year of the payment.

In added words, the entity-level tax payments are not taken into annual in applying the SALT cap limitation to any alone who is a accomplice or actor in the pass-through entity. This is accurate behindhand of whether the pass-through commodity tax is the aftereffect of an acclamation by the commodity — every state, except Connecticut, with a accepted pass-through commodity tax has fabricated the tax elective.

Similarly, the IRS bent it is immaterial whether the ally or shareholders of the pass-through commodity accept a fractional or abounding deduction, exclusion, acclaim or added state-level tax account based on their allotment of the bulk of tax paid.

This contempo admonition could activate a flurry of accompaniment aldermanic action by states gluttonous to admonition in-state business owners get about the answer cap as states now accept abundant beneath ambiguity about how the IRS will amusement the workaround. This includes a renewed focus on New York state’s proposed unincorporated business tax.

In fact, the alone acumen I see for states not to accompany this admission is the continuing ambiguity surrounding aloof how abundant account the workaround could accommodate accustomed that President-elect Joe Biden has discussed replacing the $10,000 SALT cap with a 28% absolute on all itemized deductions for those earning added than $400,000.

This change could annihilate the account of pass-through commodity taxes. Either way, owners of pass-through entities, abnormally those that accomplish alone in a distinct state, should be actual admiring by this news.

Fire, But No Smoke

One new antecedent of acquirement that abounding practitioners accepted to be able to advertise this accomplished year was legalized recreational cannabis tax. But there has yet to be any smoke to this fire. This could change soon, however, as New York Assembly Majority Baton Andrea Stewart-Cousins has said recently, it isn’t a catechism of if, but aback and how New York assembly accept the taxation and amends of recreational cannabis.

New York’s assembly autonomous baton predicted at a annual appointment in December that Democrats in the accompaniment assembly will accept developed their majority into a veto-proof supermajority already tallies of the final 2020 votes are complete.

And a Autonomous supermajority opens a bright aisle for 2021 actuality the year aback New York assuredly legalizes cannabis for developed use, abnormally in the deathwatch of COVID-19’s bread-and-butter crisis and the charge for added acquirement streams.

Other contempo reports, however, attention that New Yorkers shouldn’t apprehend abeyant marijuana tax revenues to break all the state’s bread-and-butter woes. The Citizens Annual Commission, for example, arise a November abode arguing that New York should be afraid about relying on abeyant revenues from the amends of recreational marijuana as a way to bound abutting gaps in the state’s budget.

The abode addendum that states which accept already legalized recreational marijuana aren’t acumen constant tax revenues until, on average, three to four years afterwards the fact, which does little to abode New York’s actual charge for cogent amounts of added revenue.

New York Continues Updates to Abstract Accumulated Tax Ameliorate Regulations

Since at atomic aboriginal 2016, the New York Accompaniment Administration of Taxation and Finance has consistently provided abstract updates and amendments to the state’s Commodity 9-A Business Association Franchise Tax Regulations.[12] The updates are meant to absorb the changes fabricated by New York’s accumulated tax ameliorate legislation, which was independent in the 2014-2015 and 2015-2016 New York accompaniment budgets.

Because these are abstract regulations, New York appropriately instructs taxpayers that the “draft authoritative amendments are not final and should not be relied upon.” In practice, however, it can be actual accessible for taxpayers to analysis the abstract regulations in chase of advantageous guidance. In added words, there’s no charge to attending a allowance horse in the mouth!

The 2020 updates included abstract regulations apropos basal definitions;[13] net operating losses;[14] credits adjoin tax;[15] adapted rules for arty the burghal busline business tax surcharge;[16] and the taxation of appropriate entities, including accumulated partners, New York S corporations, absolute acreage advance trusts, adapted advance companies and calm all-embracing sales companies, and able New York manufacturers.[17]

Earlier versions of the abstract regulations blow on the added cogent changes fabricated beneath New York’s accumulated tax reform, including:

And as the end of 2020 approaches, the administration has yet to abide any of its proposed regulations to the Accompaniment Administrative Procedures Act action for academic adoption. So if you’re attractive to canyon some time this anniversary season, booty a attending and allotment your thoughts.

Trump’s New York Tax Fights Drag On

Back in backward 2019, Admiral Donald Trump announced, on Twitter of course, that he was alteration his claimed tax abode from New York to Florida.[18] According to Trump’s tweets,  he will consistently “cherish” the bodies of New York, but “unfortunately,” the admiral claimed, “despite the actuality that I pay millions of dollars in city, accompaniment and bounded taxes anniversary year, I accept been advised actual abominably by the political leaders of both the burghal and state.”

The admiral accordingly arise that it was “best for all concerned” for him to leave New York and accomplish Florida his new home. If alone announcement a cheep were all that taxpayers bare to do to accurately change their tax residency!

The accomplished year, however, has accurate that Trump’s disputes with New York tax authorities are annihilation but a affair of the past. We saw, for example, the U.S. Supreme Cloister affair two opinions over admission to Trump’s accompaniment and federal tax returns.[19]

First, in Trump v. Vance,[20] the cloister captivated that presidential amnesty didn’t administrate to a bent analysis by the New York County commune attorney’s office, in which the commune attorney’s appointment issued a amendment to Mazars USA LLP, Trump’s longtime claimed accountants, gluttonous Trump’s tax allotment and accompanying schedules.

Second, in Trump v. Mazars USA LLP,[21] the cloister captivated that the U.S. Cloister of Appeals for the D.C. Ambit and the U.S. Cloister of Appeals for the Second Ambit had bootless to abundantly accede the break of admiral issues presented by aldermanic subpoenas issued to Trump’s longtime accountants for his banking annal and to two banks for his, his family’s, and his entities’ banking information.

The court’s accommodation in Mazars alone two lower cloister rulings that upheld the subpoenas and adjourned the affair aback to the ambit courts to added absolutely accede the break of admiral issues involved.

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Separately, the New York Attorney General’s Appointment continues its civilian analysis into whether the Trump Organization Inc. aggrandized the bulk of a 200-acre Westchester County acreage in adjustment to affirmation a $21.1 actor federal tax answer in 2015 accompanying to the donation of a 158-acre attention easement.

The case, New York v. Trump Organization et al.,[22] is currently afore the New York Supreme Cloister in New York County, as the cloister considers procedural arguments over which subpoenaed abstracts can be cloistral beneath attorney-client privilege.[23]

So while Trump may be attractive advanced to sunnier tax canicule at Mar-a-Lago, 2020 showed us that New York’s absorption in the President’s tax filings aren’t action abroad any time soon.

The opinions bidding are those of the author(s) and do not necessarily reflect the angle of the firm, its clients, or Portfolio Media Inc. or any of its or their corresponding affiliates. This commodity is for accepted admonition purposes and is not advised to be and should not be taken as acknowledged advice.

[1] https://www.governor.ny.gov/news/governor-cuomo-mayor-de-blasio-senate-majority-leader-stewart-cousins-speaker-heastie-and-new.

[2] https://www.tax.ny.gov/pit/file/nonresident-faqs.htm#telecommuting.

[3] https://www.tax.ny.gov/pdf/memos/income/m06_5i.pdf.

[4] 20 NYCRR 132.18(a).

[5] 830 CMR 62.5A.3(3)(a).

[6] https://www.nj.com/opinion/2020/08/working-from-home-and-still-paying-a-bundle-in-taxes-to-ny-lets-end-that-opinion.html.

[7] NYC Admin Code 11-508(c)(3)(C).

[8] https://ibo.nyc.ny.us/iboreports/revenue-options-revising-the-property-and-related-taxes-2020.pdf.

[9] https://www.nysenate.gov/legislation/bills/2019/s44/amendment/b and https://www.nysenate.gov/legislation/bills/2019/a4540/amendment/b.

[10] https://www.tax.ny.gov/pdf/stats/stat_pit/pit/unincorporated-business-tax-discussion-draft-summary.pdf.

[11] https://www.irs.gov/pub/irs-drop/n-20-75.pdf.

[12] https://www.tax.ny.gov/bus/ct/corp_tax_reform_draft_regs.htm.

[13] https://www.tax.ny.gov/pdf/bus/ct/definitions-regulation-February-2020-draft.pdf.

[14] https://www.tax.ny.gov/pdf/bus/ct/nol-draft-july-2020.pdf.

[15] https://www.tax.ny.gov/pdf/bus/ct/credits-part-5-march-2020-draft.pdf.

[16] https://www.tax.ny.gov/pdf/bus/ct/mta-revisions-draft-9-10-20.pdf.

[17] https://www.tax.ny.gov/pdf/bus/ct/special-entities-may-2020-draft2.pdf.

[18] https://www.law360.com/articles/1217142. 

[19] https://www.law360.com/articles/1312927.

[20] Trump v. Vance, No. 19-635 (S. Ct. 2020).

[21] Trump v. Mazars USA LLP, No. 19-715; No. 19-760 (S. Ct. 2020).

[22] New York v. Trump Organization et al., Case No. 451685/2020.

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[23] https://www.law360.com/tax-authority/state-local/articles/1335712/trump-org-opposes-new-subpoena-args-in-ny-ag-s-probe?nl_pk=3ca94db0-87a5-494b-a063-aed73de89ab4&utm_source=newsletter&utm_medium=email&utm_campaign=tax-authority/state-local.

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